Comprehensive Definition: Guardianship in Islam is fundamentally categorized into two primary types:
- Wilāyah (ولاية): Guardianship encompassing responsibilities such as management of property, education, and marriage arrangements of the ward.
- Ḥiẓānah (حضانة): Guardianship over the rearing and daily care of the child.
Etymology and Historical Background: The term “wilāyah” derives from the Arabic root “w-l-y” meaning “to rule” or “to be in charge,” suggesting authoritative oversight, generally in matters of management and protection of the ward’s assets. “Ḥiẓānah” comes from the root “ḥ-ẓ-n” indicating nurturing and protection typically associated with the custodial care of minors, capturing the essence of upbringing and daily care beyond mere management.
The concepts rooted in Quranic principles and Hadiths date back to the early days of Islam, ensuring minors’ well-being and property rights were protected in society, especially in patriarchal structures.
Cultural Differences and Similarities: While the principles of wilāyah and ḥiẓānah are central to Islamic jurisprudence (Fiqh), interpretations and implementations can exhibit significant cultural diversity across different Islamic societies:
- Middle Eastern Context: Due to stringent adherence to Sharia law, both guardianship types strictly follow the traditional jurisprudence outlined in classical texts.
- South Asian Context: Family structures often influence the application of guardianship rules, sometimes blending local customs with Islamic principles.
- Western Context: With legal pluralism, Muslim communities in non-Muslim-majority societies navigate between Islamic principles and the prevailing secular legal frameworks.
Synonyms:
- Wilāyah: Custody, Stewardship, Trusteeship
- Ḥiẓānah: Custodial Care, Childcare, Parenting
Antonyms:
- Negligence, Dereliction, Abandonment
Related Terms:
- Qāḍī (قاضي): An Islamic judge who has authority in legal matters including the appointment of guardians.
- Agnate Relatives (عَصَبَة): Male relatives from the father’s side who often hold certain custodial rights under Islamic law.
- ‘Iddah (عِدَّة): The waiting period a woman must observe after dissolution of marriage; it influences custodial decisions for minors.
Exciting Facts:
- Guardians (Wilāy and Ḥiẓānah) are often selected based on their moral integrity and capability.
- The mother’s right of ḥiẓānah is generally respected unless she remarries or is deemed unfit.
- Legal scholars like Hanafi, Maliki, Shafi’i, and Hanbali have slight variations in guardianship laws reflecting their jurisprudential diversity.
Quotations:
- “The mother is of all the persons, the best entitled to the custody (ḥiẓānah) of her infant child unless she be unworthy to be trusted.” - Ftawā-i-‘Ālamgīrī
- “A guardian may sell or purchase movables on account of his ward, either for an equivalent or at such a rate as to occasion an inconsiderable loss.” - Hidāyah
References:
- “The Guardian and the Emergent Jurisprudence in Islam” by Dr. Mahmoud Taha
- “Islamic Family Law in a Changing World: A Global Resource Book” edited by Abdullahi An-Na’im
- “Guardianship in Islamic Law” Lecture Series by Dr. Jamal Badawi
- “The Child in Islamic Law”, by Dr. Norman Calder
Suggested Literature and Resources for Further Studies:
- “Hidāyah” Volumes on Islamic Jurisprudence
- “Fatāwā-i-‘Ālamgīrī” for interpretations and applications of Islamic rulings.
- Lectures on Sharia by noted scholars like Khaled Abou El Fadl
Inspirational and Thought-Provoking Farewell: Embracing the values of guardianship in Islam teaches us the importance of trust, compassion, and responsibility within family units. Exploring the nuances of wilāyah and ḥiẓānah reminds us of the profound wisdom embedded in Islamic jurisprudence aimed at ensuring justice and protection for the most vulnerable in society. Seek knowledge continuously and allow understanding to guide your actions in custodianship and care.
- Zainab Halim
